ROCKFIELD CENTRAL, DUNDRUM, DUBLIN 16
NON-DISCLOSURE AGREEMENT
By accessing the marketing website and/or the data site for the
sale of Rockfield Central (which website and data site individually and
collectively comprise the “Data Room” for the purpose of this agreement) you
acknowledge and agree to the terms that appear below, and these terms govern
your use of the Data Room on each and every occasion that the Data Room is
accessed by you.
By accessing the Data Room / clicking on the ‘Accept’ button
below, you acknowledge that you are a “Receiving Party” and acknowledge that
you have read, understood, and agree to be bound by the above terms, both in
your individual capacity and to the extent possible for and on behalf of the
Receiving Party. We understand that the Receiving Party
is interested in entering into discussions with the Disclosing Party concerning
the sale of Rockfield Central, Dundrum, Dublin 16 (the “Proposed Transaction”).
For that purpose the Disclosing Party is prepared to make
available to the Receiving Party certain information relating to the assets the
subject of the Proposed Transaction and other confidential information:
1. Definitions
In this Agreement unless the context otherwise requires:
1.1 “Affiliate” means
another Person which is controlled by a Party hereto, which Controls a Party
hereto or which is under common control with a Party hereto;
1.2 “Agents” means the
directors, officers, employees, consultants, agents, financier, investors,
auditors and professional advisors of each Party. For the avoidance of doubt,
nothing in this Agreement is binding upon any person or entity that does not
receive Confidential Information.
1.3 “Agreement” means
this agreement.
1.4 “Confidential
Information” means, minutes, circulars, memoranda, meeting notes, case
materials, agreements, contracts, security documents, offer letters and other
instruments / documents or any and all information or data relating to the
Proposed Transaction and regarding the business and / or activities of the
Disclosing Party and its respective group companies and Affiliates as may from
time to time be disclosed by or on behalf of the Disclosing Party to the
Receiving Party or to which the Receiving Party may be provided access by the
Disclosing Party on or after the date of this Agreement (including by way of
providing access to a marketing website or data room, whether on-line or
otherwise) and in whatever form, whether in writing or orally irrespective of
the form of communication, whether marked confidential or not, including
without limitation, presentations, letters, e-mails, facsimiles, reports,
surveys other information or data, and any and all copies, analyses, compilations,
methodologies, notes, studies, memoranda or other documents derived from,
containing or reflecting such information prepared by the Receiving Party and /
or its Agents. Confidential Information may include information received
from third parties acting in co-operation with, or for, the Disclosing Party.
“Control” means the power of a person, to secure directly
or indirectly including through one or more intermediaries:
(a) by means of the
holding of shares or the possession of voting power directly or indirectly in
or in relation to that or any other Person; or
(b) by virtue of any
powers conferred by the constitutional documentation or other document
regulating that or any other Person,
that the affairs of another Person are conducted in accordance
with the wishes of the first mentioned Person and the expressions controls, controlled and under
common control which shall be construed accordingly;
1.5 “Data Room Rules”
means the rules issued by the Disclosing Party from time to time and at any
time whether before or after the date of this Agreement governing access to and
management of the Data Room in respect of the Proposed Transaction, to which
the Receiving Party is subject.
1.6 “Disclosing Party”
means Mac-Rockfield Limited.
1.7 “Party” means
either of the Disclosing Party or the Receiving Party and together the “Parties”
and each of them as appropriate and references to acts of the Disclosing Party
includes acts of the Disclosing Party’s Agents.
1.8 “Person” includes
any individual, company, body corporate, partnership or other entity.
2. Provision
of information
2.1 The Receiving Party
acknowledges that neither the Disclosing Party, its group companies or its
Affiliates, nor their respective Agents, makes any representation, warranty,
assurance, guarantee or other inducement of any kind to the Receiving Party or
to any other person with respect to the Confidential Information or with
respect to the accuracy, reliability or completeness of the Confidential
Information or with respect to the non-infringement of trade marks, patents,
copyrights or any other intellectual property or other third party rights
nor shall they have any liability to the Receiving Party in respect of
the Confidential Information (unless otherwise agreed in writing after the date
of this Agreement).
2.2 Nothing in this Agreement
may be construed as compelling either Party to disclose any Confidential
Information to the other or to enter into any further contractual
relationships. The Receiving Party acknowledges that the provision of
Confidential Information will not constitute an offer by the Disclosing Party,
nor will the Confidential Information or the disclosure thereof form the basis
of any contract, nor a representation, which may be relied upon by the
Receiving Party save as expressly agreed in writing between the Parties.
2.3 The Receiving Party
acknowledges that the Disclosing Party shall have no obligation to update or
correct any inaccuracy in the Confidential Information.
2.4 The Receiving Party
acknowledges that they have provided the Disclosing Party with accurate and
complete registration information and that it is their responsibility to update
the Disclosing Party of any changes to that information (including their email
address).
2.5 The Receiving Party
acknowledges that access to the Data Room may be terminated at any time without
notice.
3. Use
3.1 Whilst using the Data Room,
Parties must:
(a) take all reasonable
steps to ensure that none of the Confidential Information is visible to, or
capable of being viewed by, other persons;
(b) not leave their
computer or other communications device through which they access the Data Room
unattended whilst connected to the Data Room;
(c) ensure that they
close their browser and log out when they have finished using the Data Room;
(d) not deface, mark,
alter, modify, vary (including varying the sequence of) damage or destroy in
any way any Confidential Information contained in the Data Room;
(e) not attempt to
download, scan, copy, print or otherwise capture any of the Confidential
Information contained in the Data Room, except that Confidential Information
for which the print capability has been enabled as indicated by the Data Room
index may be printed and any information for which the download capability has
been enabled (if any) may be downloaded;
(f) not attempt to disable
the protection software associated with the Data Room; and
(g) not share their
Data Room password with anyone else.
4. Duty
to maintain confidentiality
4.1 The Receiving Party
agrees that it will maintain all Confidential Information, in the strictest
confidence, that the Confidential Information will be used by the Receiving
Party exclusively for the purposes of the Proposed Transaction (including to
assess whether and on what terms it wishes to participate in such transaction)
and the Receiving Party shall not make or permit to be made any commercial use
of the Confidential Information for any other purpose. The Receiving Party will
not permit the Confidential Information to be disclosed to any third parties
provided however that such parts (and only such parts) of the Confidential
Information may be disclosed to its Agents who need to have such information
for such purposes (it being hereby further agreed that the Receiving Party will
inform such Agents of the confidential nature of such information and that the
Receiving Party will procure that each of its Agents to whom disclosure
is made complies with the terms of this Agreement). In any event, the Receiving
Party shall be responsible for any breach of this Agreement by any of its
Agents.
4.2 The Receiving Party shall
take all reasonable measures to protect the secrecy of the Confidential
Information, and to avoid its disclosure and unauthorised use. Without
limiting the foregoing, the Receiving Party shall apply measures which are at
least as stringent as it applies to protect its own confidential information
and shall require its Agents who have access to the Confidential Information to
protect the secrecy of the Confidential Information in the same manner which shall
include maintaining the Confidential Information safely in a secure place at
all times and properly protected against theft, damage, loss and unauthorised
access (including, but not limited to, by electronic means).
4.3 The Receiving Party shall
not make any copies of Confidential Information, except as may be necessary to
carry out the Proposed Transaction (including to assess whether and on what
terms it wishes to participate in such transaction). If the Receiving
Party does make copies, it must include on the copies all of the confidential
and intellectual property notices (if applicable) of the Disclosing Party (and
/ or their respective group companies / Affiliates) exactly as in the original
and all copies or reproductions thereof shall be deemed to be the property of
the Disclosing Party.
4.4 The Receiving Party shall
not, without the prior written consent of the Disclosing Party, disclose to any
person or body, except for its Agents or Affiliates, either the fact that
discussions or other work relating to the Proposed Transaction are taking
place, including that the Receiving Party is reviewing the Confidential
Information, or any of the terms, conditions or other matters relative to the
Proposed Transaction, including the status thereof and the existence and terms
of this Agreement.
4.5 The Receiving Party
acknowledges that some or all of the Confidential Information disclosed from
time to time may be unpublished, price sensitive information and that the use
of such information may be regulated or prohibited by application legislation
including security law relating to insider dealing and market abuse and that
the Receiving Party is aware of and warrants and undertakes and will comply at
all times with all its obligations relating to such information under the law
and regulations applicable to it and will not use at any time any Confidential
Information for an unlawful purpose.
5. Exceptions
5.1 The obligations in Clause
4 shall not apply to any Confidential Information where the Receiving Party can
demonstrate that the Confidential Information:
(a) is in the public
domain otherwise than as a result of a breach of this Agreement;
(b) was known by the
Receiving Party prior to the disclosure thereof by the Disclosing Party or was
obtained or is subsequently obtained by the Receiving Party or its Agents and
received from a source (other than directly or indirectly from the Disclosing
Party) permitted to disclose the same free from confidentiality restrictions,
or is otherwise lawfully in the possession of the Receiving Party otherwise
than as a result of a breach of this Agreement, as evidenced by the written
records of the Receiving Party and / or its Agents;
(c) is approved for
disclosure pursuant to the prior written consent of the Disclosing Party; or
(d) is required to be
disclosed pursuant to a statutory obligation, the order of a court of competent
jurisdiction or requested by a competent regulatory body, or authority provided
that the Receiving Party, to the extent legally possible, gives written notice
to the Disclosing Party once it becomes aware that it may become so compelled,
and makes all reasonable efforts to protect the Confidential Information in
connection with the disclosure and such disclosure shall be limited to the
minimum amount of Confidential Information required to satisfy that disclosure
obligation. The Receiving Party shall take such steps as the Disclosing Party
may reasonably require to prevent such disclosure and will to the extent
legally possible, keep the Disclosing Party promptly and fully informed of all
developments relating to any such potential disclosure.
5.2 For the avoidance of
doubt, Confidential Information shall not be deemed to be in the public domain
merely because it is known to a limited number of third parties having
experience in the relevant field. In addition, any combination of
elements of the Confidential Information shall not be deemed to be within the
foregoing exceptions merely because individual elements of the Confidential Information
are in the public domain but only if the combination is in the public domain.
Further, if a portion (but not all) of the Confidential Information falls
within any one of the above exceptions, the remainder of the Confidential
Information shall continue to be subject to the restrictions of this Agreement.
6. Data
protection
6.1 For the purposes of this
Agreement, “Data Protection Law” shall mean the Data Protection Acts
1988 to 2018 (Ireland) and the General Data Protection Regulation (EU) 2016/679
of the European Parliament and the Council of 27 April 2016 as may be amended,
re-enacted or re-instated from time to time and any implementing legislation.
6.2 To the extent that the
Confidential Information comprises any Personal Data (as defined in Data
Protection Law) the Parties acknowledge and agree that each will act as an
independent controller (as defined in Data Protection Law) in respect of the
Personal Data.
6.3 The Parties agree that to
the extent that the Confidential Information provided to the Receiving Party
comprises any Personal Data, any such Personal Data which the Disclosing Party
supplies or discloses to the Receiving Party pursuant to this Agreement and /
or otherwise as part of the Proposed Transaction, shall be treated as set out
below.
6.4 The Personal Data shall
remain at all times the property of and in the ownership of the Disclosing
Party and the Receiving Party shall have no rights whatsoever in respect
thereof. The Receiving Party shall process the Personal Data only for the
purpose of the Proposed Transaction.
6.5 The Receiving Party
warrants and undertakes that it shall:
(a) comply with the DPA
and all other applicable data protection laws and guidance including (without
limitation) applicable laws relating to accessing, use and onward disclosure,
distribution, exporting, archiving, maintenance and storage of Personal Data
and with the terms of this Agreement and process the Personal Data only to the
extent strictly necessary in connection with the Proposed Transaction;
(b) report any incident
which gives rise to a risk of unauthorised disclosure, loss, destruction or
alteration of the Personal Data to the Disclosing Party immediately upon
becoming aware of such an incident and advise the Disclosing Party of the steps
that it intends to take to remedy that incident and shall keep the Disclosing
Party informed as to the progress and completion of those steps;
(c) not copy, reproduce
or reduce to writing any part of the Personal Data except as may be reasonably
necessary for the purposes set out in this Agreement and that any such copies
or reductions to writing shall be the property of the Disclosing Party;
(d) ensure that only
such of its directors, employees, investors, contractors, Affiliates or its
Agents who may be strictly necessary to assist the Receiving Party in
connection with the Proposed Transaction shall have access to or process the
Personal Data;
(e) not disclose the
Personal Data to a third party in any circumstances other than at the specific
request of the Disclosing Party or as otherwise specified in this Agreement;
(f) notify the
Disclosing Party immediately upon receiving any notice or communication from
any supervisory, law enforcement, regulatory or government body which relates
directly or indirectly to the processing of the Personal Data, except where
such disclosure is itself prohibited. The Receiving Party will reject any such
request which is non-legally binding;
(g) implement
appropriate technical and organisational measures to protect and secure
Personal Data made available in connection with the Proposed Transaction
against unauthorised access to, or accidental or unauthorised destruction,
loss, alteration or disclosure of any Personal Data contained in the
Confidential Information; and
(h) shall not transfer
the Personal Data outside the European Economic Area or any other country that
is formally recognised by an adequacy decision of the European Commission
unless authorised in writing to do so by the Disclosing Party.
6.6 Upon expiry or
termination of this Agreement or earlier on receipt of a written request from
the Disclosing Party, the Receiving Party shall promptly return or destroy (to
the extent reasonably technically possible) all Personal Data disclosed to it
by the Disclosing Party including any copies, notes or other materials
containing such Personal Data and the Receiving Party shall if so requested by
the Disclosing Party, certify to the Disclosing Party that it has complied with
this Clause 6.
7. No
right or title
The Receiving Party acknowledges that the Confidential
Information and whatever patent, copyright or other intellectual property rights
of whatever nature attaching thereto are and remain the property of the
Disclosing Party and neither it nor its Agents shall acquire by implication or
otherwise any right in or title to or licence in respect of any Confidential
Information by virtue of any disclosure made pursuant to this Agreement.
8. Term
and Termination
8.1 This Agreement shall
govern all communications relating to Confidential Information between the
Parties hereto in relation to the Proposed Transaction until such time as this
Agreement is either expressly superseded by a subsequent agreement between the
Parties hereto or upon the Parties giving to each other not less than seven (7)
days prior notice in writing of termination, whichever is earlier provided
always that the obligations set forth in this Agreement shall survive the
termination for a period of two (2) years from the date of termination or
expiration of this Agreement howsoever arising.
8.2 On termination or
expiration of this Agreement, the Receiving Party shall promptly on written
request forthwith return (or procure the return) to the Disclosing Party, or as
the Disclosing Party may direct, all Confidential Information received by it
and in addition, at the option of the Disclosing Party, shall either (a) return
(or procure that there shall be returned) all copies or reproductions of any
Confidential Information so received (in whatever form or medium the same shall
have been made and whether in the possession or under the Control of the
Receiving Party or any Affiliates thereof or of any of its or their respective
Agents or advisers) or (b) destroy (or procure the destruction of) all such
copies or reproductions and confirm in writing to the Disclosing Party that the
same have been destroyed save that this obligation shall not apply to a
Receiving Party’s Agent who is required by its professional conduct rules to
maintain files or records for a period of time or any Confidential Information
provided to it.
9. Notice
of breach
If the Receiving Party becomes aware that it or its Agent has
disclosed any Confidential Information, in breach of this Agreement, the
Receiving Party shall, to the extent permitted by law and regulation, promptly
notify the Disclosing Party in writing of the disclosure and shall give all
commercially reasonable assistance in connection with any proceedings which the
Disclosing Party may institute in respect of any such breach against any of the
Persons the subject of this Agreement and will use reasonable endeavours to
prevent the occurrence of any further breach of this Agreement.
10. Damages
The Receiving Party acknowledges and agrees that, in the event
of a breach by it of this Agreement, damages may not be a sufficient remedy for
the Disclosing Party. Accordingly, in addition to other remedies, the
Disclosing Party shall have the right to seek injunctive relief and specific
performance of the Receiving Party’s obligations for breach or threatened
breach of this Agreement and that no proof of special damages shall be
necessary for the enforcement of this Agreement. Any such remedy shall
not be deemed to be exclusive or all-inclusive and shall be in addition to any
and all other remedies which may be available to the Parties at law or in
equity.
11.
Indemnity
The Receiving Party hereby agrees and undertakes to fully
indemnify and keep indemnified the Disclosing Party against all actions,
proceedings, claims, losses, expenses, demands, costs, awards and damages
arising directly or indirectly as a result of any breach of the Receiving
Party's obligations under this Agreement or the terms of provisions of this
Agreement by the Receiving Party and/or its Agents and/or Affiliates.
12. Announcements
The Receiving Party will not make, or permit or procure to be
made or solicit or assist any other person to make, any announcement or
disclosure of the Proposed Transaction without the prior written consent of the
Disclosing Party (which may be given, if at all, on such terms as the
Disclosing Party considers appropriate). If the Parties should agree to proceed
with the Proposed Transaction, no announcement of the transaction will be made
except by prior agreement with the Disclosing Party, provided that nothing in
this paragraph shall prohibit any announcement required by law.
13. Employees
The Receiving Party will not contact any employees, directors or
officers of the Disclosing Party in respect of the Proposed Transaction without
obtaining prior written consent of the Disclosing Party to do so.
14. Principal
The Receiving Party confirms that it is acting in this matter as
principal, and not as agent or broker for any other person. The Receiving
Party also confirms that it will be responsible for any costs incurred by it or
its Agents in pursuing this matter.
15. Notices
Any notice or other communication given or made under this
Agreement shall be in writing and may be delivered to the relevant Party or
sent by pre-paid registered post to the address of that party specified in this
Agreement or such other address or number as may be notified hereunder by that
Party from time to time for this purpose and will be effective notwithstanding
any change of address not so notified. Unless the contrary is proved, each such
notice or communication will be deemed to have been given or made and
delivered, if by post forty-eight (48) hours after posting, or if by delivery
when left at the relevant address.
16. Procedure
The Receiving Party understands and agrees that the procedure
for the evaluation of Confidential Information and any negotiations in relation
to the Proposed Transaction may be changed or terminated at any time and
without notice by the Disclosing Party, and the Receiving Party agrees
that the Disclosing Party will be under no obligation to recommend any offer or
proposal (whether or not any such offer or proposal is the most favourable
offer or proposal received) which may be made by the Receiving Party or on its
behalf in the course of any negotiations.
The Receiving Party is responsible for all use of the Data Room
using their user account and for preventing unauthorised use of their user
account.
17. Data
Room Rules
It will be a condition of gaining access to the Data Room that
the Receiving Party and its Agents accept and comply with the Data Room Rules.
The Receiving Party undertakes to comply with such Data Room Rules including
without limitation any restrictions on copying and/or printing.
18. Legal
privilege
Access to the Confidential Information is granted to the
Receiving Party without waiver by any Person of confidentiality and/or legal
professional privilege and/or common interest privilege which attaches to any
of the Confidential Information. The Receiving Party acknowledges and agrees
that it shall not knowingly, at any time, waive, assign or compromise privilege
or confidentiality in relation to the Confidential Information in any way.
19. No
waiver of rights
It is further understood and agreed that no failure or delay by
the Disclosing Party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
right, power or privilege hereunder.
20. No
partnership
It is understood that this Agreement constitutes a
confidentiality and non-disclosure agreement only. It shall not be
construed as giving effect to or otherwise implying a teaming, joint venture,
partnership, agency or other such arrangement and neither Party shall be
committed to the other Party in any way (save as set out in this Agreement) or
obliged to enter into any transaction unless and until a further formal
agreement is duly executed and delivered and neither Party is obligated in any
way to enter into such agreement. Nothing in this Agreement shall grant
to any of the Parties the right to make commitments of any kind on behalf of
the other Party without the prior written consent of the other Party.
21. Representations
Each of the Parties represents that it has full power and
authority to enter into and deliver this Agreement in the manner in which it
does so and to comply with the provisions of, and perform all its obligations
and exercise all of its rights under this Agreement. To the extent that this
Agreement is entered into by an authorised signatory, that party confirms by
clicking on the “Accept” button below, that it has full authority to bind the
relevant Party to this Agreement.
22. Variation
This Agreement may not be supplemented, amended, varied and
modified in any manner except in writing and signed by a duly authorised
officer or representative of each of the Parties hereto.
23. Entire
agreement
This Agreement expresses the entire agreement and understanding
of the Parties with respect to the subject matter hereof (with the exception of
the Data Room Rules) and supersedes all prior agreements and understandings.
24. Counterparts
This Agreement may be executed by the Parties on separate
counterparts and, if so executed, will be as if all counterparts were on a
single copy of this Agreement and any Party may enter this Agreement by
executing a counterpart. For the purposes of the Electronic Commerce Act 2000,
the Parties consent to the use of electronic communications and electronic
signatures, for all purposes under this Agreement.
25. Joint
and Several
If the Receiving Party comprises more than one Person, the
commitments herein are made on behalf of all such Persons and the liability
arising in this Agreement is joint and several amongst these Persons.
26. No
assignment
Neither Party may assign or transfer this Agreement in whole or
in part without the prior written consent of the other Party. Any
purported assignment in violation of the foregoing shall be null and void. Any
assignment will not relieve the assigning Party of its obligations of
confidentiality under this Agreement.
27. Severability
Each of the provisions of this Agreement are severable and
distinct from the others and, if any provision is, or, at any time becomes, to
any extent or in any circumstances invalid, illegal or unenforceable for any
reason, that provision shall to that extent be deemed not to form part of this
Agreement but the validity, legality or enforceability of the remaining parts
of this Agreement shall not be affected or impaired
28. Governing
law and jurisdiction
This Agreement and any non-contractual obligations arising out
of or in connection with it shall be governed by and construed in all respects
in accordance with the laws of Ireland and the Parties hereby agree to submit
to the exclusive jurisdiction of the courts of Ireland.